The Halakhic Parameters of Delaying Procreation

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Moshe Kahn

Bio: Rabbi Kahn is a teacher of Talmud and Jewish law at Stern College for Women, the Graduate Program in Advanced Talmudic Studies at Stern College, the Drisha Institute, and is a member-in-training to become a psychoanalyst at the National Psychological Association for Psychoanalysis in New York City.

Abstract: This article aims to show that there is a strong halakhic basis to allow a childless couple to postpone procreation temporarily and without an arbitrary time limit imposed. It focuses on the rulings of Rivash and Rema, who recommend that the rabbinic leadership adopt a laissez faire policy regarding marital issues The Talmudic teaching extolling zealousness is not absolute and would not apply if a delay would enhance the performance of the commandment. The fear of a premature death is

not a factor with regard to the commandment to procreate. A Forum of Modern Orthodox Discourse Orthodox Modern of Forum A

M e o r o t

A Publication of Yeshivat Chovevei Torah Rabbinical School

The Halakhic Parameters of Delaying Procreation1

Moshe Kahn

As a Talmud teacher at Stern College for context, I would like to consider the following Women for almost three decades, I have found questions: Does a couple’s wish to delay myself confronted in recent years by an fulfilling the commandment to procreate increasingly greater number of requests to require rabbinic permission? If so, what are the decide questions of marital issues. My students halakhic determinants of the discussion? If not, seem simultaneously pulled in opposite what are the consequences of rabbinic directions. On the one hand, many of these involvement into this personal matter? women are classically modern Orthodox, independently learned and fluent in halakhic texts; on the other hand, they appear Does a couple’s wish to delay fulfilling the increasingly reliant upon rabbinic authority to commandment to procreate require rabbinic decide matters that may fall under the rubric of permission? personal autonomy. Nowhere is this tension more poignant than in questions of contraception.2 At the outset, we must distinguish between two categories of positive Torah laws. Some Many of my finest students are unaware of the positive commandments are time-bound: Once latitude offered them by halakhic precedent. a designated time passes, the opportunity to They are often embarrassed by their wish to fulfill them is gone. Eating matsah on the postpone procreation (as if it reflects a lack of fifteenth day of Nissan is such an example. faith) and they approach me with painful Other positive commandments—such as trepidation to tell their stories. Some of them procreation—are not limited to a certain time. and their prospective husbands intend to If a man3 fulfills this mandate late in life, the pursue graduate study, they are torn by a fulfillment is just as valid as that of a younger perceived difficulty in managing baby and man. Nevertheless, the question remains career. Others, who may be leaving their whether the delay itself is permitted. childhood home for the first time, are struggling with a lack of confidence in their There are three halakhic issues that we must ability to assume parenting roles. And I suspect address: that there are further reasons that these young men and women do not know or cannot 1. Is a delay considered a violation and articulate. They frequently ask their rabbi cancellation of the commandment because they believe or have been told that itself until it has been fulfilled? they must do so, sometimes because they

perceive rabbis as benign paternal authorities 2. Does the concept of zerizin maqdimin le- who will help them cope with their anxieties. mitsvot, the conscientious fulfill the commandments expeditiously, We, as rabbis, must give our young men and necessitate a prompt fulfillment? women proper counsel and guidance. In that 3. Does the fear of an early demise— 1. I owe a debt of gratitude to Dr. Judith Isaac for assisting me in the preparation of this article. 2. The halakhic permissibility of various methods of contraception is beyond the focus of this article. 3. Only men are obligated.

Meorot 8 Tishrei 5771 Kahn 2 heishinan le-mitah—also necessitate a nature of the mandate is particularly severe, prompt fulfillment? or because the kohen is relieved of the more general obligation expressed in the Is a Delay a Violation? talmudic dictum of zerizin maqdimin le- mitsvot (BT Pesahim 4a). Still, if one At the end of his commentary to Nega`im, the procrastinates for no reason at all, he might Hazon Ish discusses the temporal parameters of arguably cancel and violate the injunction. positive non-time-bound commandments.4 He Yet even in such a situation, it possibly first suggests, based on a ruling in the Talmud may not be a violation: As long as his (BT Mo`ed qatan 7b), that delaying the intention is to fulfill the law, the delay is performance of such laws is a violation of the not viewed as a nullification of the Torah's laws themselves. In other words, even though mandate. This position is supported by a a man can still fulfill the commandment, the ruling of Tosafot (BT Pesahim 29b): If one mere delay constitutes a temporary cancellation possesses hamets at the start of Pesah, with of that law. In that context, the Hazon Ish cites the intention to destroy it later during the talmudic discussion (ibid.) of a kohen’s Pesah, he does not violate the prohibitions obligation to examine a person suspected of against owning hamets.6 having contracted leprosy. Can a kohen delay the performance of this obligation? The In sum, the Hazon Ish starts with the view that Talmud cites a biblical verse (Lev. 13:14; 14:36) a delay in performing non-time-bound to prove that a kohen can delay for the purpose commandments constitutes a cancellation of of facilitating the fulfillment of another statute the law. He then rejects that position based (and according to one opinion even for a upon several talmudic rulings, and finally secular purpose). By implication, it would concludes that a delay would be permitted for appear that a postponement is forbidden for a divine or secular motive and possibly even those commandments that remain unrooted in for no reason at all. But the Hazon Ish only an explicit Biblical text to permit a delay. The discussed non-time-bound mitsvot in general; he Hazon Ish provisionally suggests, therefore, that did not address the specific commandment to a delay may constitute a temporary cancellation procreate. of the law itself. Yet the Hazon Ish ultimately rejects that view, “The commandment to procreate begins at the given the absence of support for it in other age of seventeen; if he is not married by the age talmudic rulings. He says, for example, that the of twenty he is violating this mandate.” mandate of halitsah/yibbum can be delayed. He also cites the talmudic statement (BT Pesahim 4a) that, in general, a delay in fulfilling a Regarding procreation, R. Huna (BT Qiddushin positive commandment represents only a lack 29b) says that a man should be married by the of conscientiousness, not a cancellation.5 He age of twenty, because all his days will therefore concludes: otherwise be filled with immoral sexual thoughts. In the Mishneh torah, Maimonides …with all non-time-bound positive codifies the halakhah as follows: commandments one can delay for the sake of another mitsvah or to avoid a monetary The commandment to procreate begins at loss. And the need for a verse in the the age of seventeen; if he is not married leprosy case is either because the essential

4. He does not discuss the specific commandment to procreate, but only this category of mitsvot as a whole. 5. The Hazon Ish does not find this proof very compelling, because this citation refers to time-bound commandments, which one does not violate until the passage of the particular time frame. 6. The translation is mine.

Meorot 8 Tishrei 5771 Kahn 3 by the age of twenty he is violating and Rosh differs from Maimonides on the canceling this mandate (Hilkhot Ishut 15:2). permissibility of delay, arguing that the court may force a man to marry by the age of twenty Clearly, Maimonides would agree that a person in order to enforce the mandate to procreate can fulfill this commandment at any age since, (Yevamot 6:16). He specifically notes that the according to the Torah, it is not time-bound. courts can coerce someone who does not want to However, for as long as he postpones, he is marry [emphasis mine], and herein lies the transgressing and temporarily abrogating the difference between Maimonides and Rosh. law. Maimonides simply says he does not marry— the mere fact that he reaches the age of twenty Maimonides codifies a similar ruling with and is not married is a violation. But according respect to the mandate of circumcision (Hilkhot to Rosh, he is only subject to judicial coercion if Milah 1:2). He rules that from the time an he does not ever want to marry. By uncircumcised male becomes an adult he is implication, if he wishes to marry at a later transgressing and canceling this mandate, yet date, he would not be transgressing. (The Pithei he is not liable for karet unless he dies teshuvah makes this inference, which I will uncircumcised. Undoubtedly, once elaborate on later.) circumcised, he has indeed fulfilled his obligation. Nevertheless, until that time, each Rashba (Responsa, 4:91) rules in the same way day he procrastinates is considered an active as Rosh. Rashba was asked whether a person’s breach of the statute. vow not to marry for a certain period of time violates the Torah. If that were the case, the vow would be void. Rashba responded that the Rosh differs from Maimonides on the vow does indeed take effect because it does permissibility of delay not annul a Torah commandment: The man can fulfill both the vow as well as the commandment to procreate. Furthermore, Maharit (Responsa, Section 2, Yoreh de`ah 47) Rashba claimed this ruling would apply even accepts Maimonides’ formulation of the for a time-bound statute, such as circumcision: commandment to procreate in a case involving If a father swears not to circumcise his son on a thirty-year-old man who is engaged to a the eighth day before the afternoon, he should young girl of six. The man has taken an oath heed his vow and wait until the afternoon (shevu`ah) not to marry another woman during because the vow is not a violation; it only her lifetime and never to divorce her. The expresses a lack of conscientiousness. By question posed to Maharit is whether his vow comparing a delay to marry with a delay to violates the Torah, since she is presently too circumcise until the afternoon of the eighth young to have children and he will have to day, Rashba implies that the command to wait. If it is a violation, the vow is null and procreate is not violated by delay. void. Maharit contends that the oath is valid and takes effect since it does not totally negate The Shulhan arukh codifies the law according to a law of the Torah. The Torah's mandate to the opinion of Rosh:7 procreate can still be fulfilled, albeit at a later time. However, argues Maharit, even though The commandment to marry begins at the the oath is valid, he is still transgressing the age of eighteen…and if by the age of commandment to procreate because any delay twenty he is still not married, and he does not in the fulfillment of a Torah law is viewed as a want to marry [emphasis mine], the court will transgression of the law. force him to do so. However, someone

7. B’er ha-golah, Even ha-ezer 1:9

Meorot 8 Tishrei 5771 Kahn 4 who is immersed in Torah study and fears for the person immersed in Torah study? By that the responsibilities of marriage will making a distinction between these two interfere with his studies is allowed to delay individuals, one might infer that only the (Even ha-ezer 1:3). Torah scholar is permitted to delay but everyone else is not. The Shulhan arukh’s statement that “he does not want to marry” seems to entail an This inconsistency is resolved by a comment of affirmative decision not to marry. The the Beit shemu’el,9 who says (Shulhan arukh, Even implication is that if he wants to marry at a ha-ezer 1:5) that someone immersed in Torah later date, he is permitted to do so. study is permitted to delay marriage because he might not persevere in his study if he were This explication of the Shulhan arukh is compelled to support a family. In this view, the endorsed by the Pithei teshuvah (Even Ha-ezer Torah scholar can delay indefinitely, as long as 1:5). The Pithei teshuvah cites the opinion of he lives, provided he is able to control his Maharikash, who expounds on the ruling of sexual urges. The distinction between the the Shulhan arukh: Torah scholar and the ordinary person, according to the Shulhan arukh, is that one who If he ultimately wants to marry but he is studies Torah can postpone marriage and seeking a temporary stay, the court will not procreation for his entire life; everyone else is compel him to do otherwise (Erekh Lehem not absolved of his obligation and can delay Pirya Va’rivya). only temporarily.10 By implication, Maharikash permits a delay of marriage, because if it were forbidden then the If he wants to marry at a later date, he is court should compel. One might argue that permitted to do so. even though the court does not compel, the delay might still be illegitimate. However, the Otsar ha-poskim (Even ha-ezer 1:5) interprets the Netsiv, in his commentary Ha`ameq she’eilah opinion of Maharikash as saying, “it would be (She’eiltot 5:4), apparently agrees with the Pithai permitted [emphasis mine] to postpone since he teshuvah that one is permitted to delay marriage ultimately wants to marry.”8 and procreation. Yet he questions the particular nature of the obligation to procreate There seems to be an internal inconsistency in and its relevance for Torah scholars. He cites the ruling of the Shulhan arukh. If the general the Talmudic stateme nt (Mo`ed qatan 9b) that rule is that anyone is allowed to postpone a personal obligation that cannot be executed marriage (provided he intends to marry at a by others cannot be neglected for the sake of later date), why is there a specific exemption Torah study. Since procreation is such an

8. The concluding statement of Maharikash—that he should not delay beyond the age of twenty-four—is based on his concern regarding uncontrollable sexual urges, not the injunction to procreate. Obviously, if he is already married, this would not be an issue. 9. The BeitsShemu’el was not deliberately seeking to address this inconsistency, but his comments are instructive for our purposes. 10. The ruling of the Shulhan arukh in Even ha-ezer 76:6 does not necessarily contradict the above ruling. There, he says that a husband who has not yet fulfilled the commandment to procreate is obligated to provide his wife with onah until he has fulfilled this commandment (procreation), even if his wife is willing to absolve him of the onah obligation. This does not necessarily imply that a postponement in the commandment to procreate is forbidden. It does suggest that the commandment to procreate and the commandment of onah are connected. The obligation to procreate should be fulfilled through the ongoing fulfillment of the obligation of onah. And as long as he has not fulfilled his obligation to procreate, his wife cannot absolve him of his onah obligation.

Meorot 8 Tishrei 5771 Kahn 5 obligation, Netsiv asks why Torah study should the law desires a speedy resolution of the take precedence over procreation. He answers, yevamah’s predicament. “Any personal obligation that is not limited to a fixed time is analogous to a personal The Talmud (BT Yevamot 39a) then discusses obligation that can be implemented by others.” the comparative desirability of halitsah by the Since the requirement to procreate is not oldest brother or yibbum by a younger brother restricted to a set time, it should be treated as a who is an adult. The Talmud attempts to commandment that can be performed by prove from the mishnah cited above that halitsah others on one’s behalf. by the oldest is preferred because we do not accept the brother’s request to wait for the minor, even though he might decide to One who studies Torah can postpone perform yibbum. However, the Talmud procreation for his entire life; everyone else can continues, this proof is inconclusive because delay only temporarily that mishnah also states that we do not wait for the oldest brother to return from abroad. Apparently, says the Talmud, there is another One must conclude based on Netsiv that the principle that determines the halakhic decision: Torah scholar’s obligation to procreate is no “one should not delay in the performance of a different from his obligation, say, to visit the mitsvah.”12 Whether yibbum by the younger or sick. If the Torah scholar is released from that halitsah by the oldest is preferred, we do not obligation (because others can perform it on delay the fulfillment of the precept. This his behalf), he is likewise released from the conclusion demonstrates that one should obligation to procreate without delay. encourage the prompt fulfillment of a Consequently, the ongoing act of delay does commandment even if a delay would enhance not violate the law.11 the way in which it is performed.

Zerizin Maqdimin le-Mitsvot Yet the Terumat ha-deshen concluded otherwise in a ruling (1:35) concerning the timing of the There is a further dimension to the discussion blessing for the new moon. He was asked if it of delay, namely, the Talmudic principle of would be preferable to recite the blessing at the “zerizin maqdimin le-mitsvot,” the conscientious earliest time or to wait until Saturday night, are zealous to fulfill the commandments when the community would be dressed in expeditiously (BT Pesahim 4a). One can derive formal shabbat attire and this precept would the importance of this principle from a mishnah thereby be beautified (hiddur mitzvah). The (BT Yevamot 39a) that states that the Terumat ha-deshen responded that it is preferable commandment to perform yibbum is imposed to wait until Saturday night. He added the upon the oldest brother. If he refuses, it falls to condition that the delay should not jeopardize the other brothers. If they all refuse, the oldest the prospect of performing the commandment. brother is told by the courts to either Therefore, he required that it still be early in consummate the relationship with yibbum or the month and there be several opportunities release the woman through halitsah. The courts to perform the commandment after Saturday do not honor the older brother’s request that night.13 she wait for the younger brother who is a minor to become a bar mitsvah, or for the return The Trumat ha-deshen reconciled the apparent of the oldest brother from abroad. Apparently, contradiction between his decision and the

11. If a postponement actually were to violate the Torah’s injunction to procreate, then he must perform the mitsvah now. It would be totally incongruous for Netsiv to compare it to a Torah obligation that others can fulfill on his behalf. 12. This principle, although worded differently, basically parallels the above-mentioned dictum extolling zealousness. 13. For example, inclement weather would require a further delay.

Meorot 8 Tishrei 5771 Kahn 6 talmudic law (in the matter of yibbum) that one need to consider the prospect of death because does not wait for a preferred outcome by death is uncommon (ibid. 13a). introducing another consideration: the performance of a commandment must not be The Tosafot yeshanim (ad loc.) challenges the delayed if there is a realistic fear that it might view of the sages on the basis of the mishnah never be fulfilled. In the case of yibbum, for found in Yevamot 26a. That mishnah says that example, the minor brother of the deceased if two of four brothers are married to two may die before reaching adulthood. Yet if it is sisters and the two married brothers die, the reasonable to assume the statute will be obeyed two sisters are subject to halitsah but not to later and in a more dignified manner, it is yibbum. The rationale is based on the fear that better to wait. The Shulhan arukh codifies the one of the surviving brothers will perform law according to the opinion of the Terumat ha- yibbum, and then the other brother may die. In deshen (Orah hayyim 426:2). that case, the second sister would be wholly exempt from yibbum or halitsah: she would If one applies the Terumat ha-deshen’s position become forbidden to her brother-in-law on hiddur mitsvah to the commandment to because a man may not be married to two procreate, it appears that a couple may delay sisters. Obviously, this demonstrates that the having children until a time when they will fear of dying is a bona fide consideration. better be able to care for their children. The fulfillment of the commandment to procreate would be enhanced and beautified by parents One should not delay in the performance of a who are psychologically and materially capable mitsvah. of nurturing their child.14

Haishinan le-Mitah—The Risk of Death The Tosafot yeshanim reconciled these opposing views of death by noting the difference However, as the Terumat ha-deshen stated, there between a long period of time and a short one. are limits to the justification for postponing the Over a short period of time, as is the case with performance of a commandment. If there is a the kohen gadol, the likelihood of death is rare; chance the statute will never be fulfilled, one over a long period of time, as in the case in should execute it immediately. In numerous Yevamot, it is more probable. Tosafot to Yevamot cases the Talmud considers the possibility of (18a) made the same distinction as did the premature death as a necessary concern and a Tosafot yeshanim, but never clarified what justification for not procrastinating. That constitutes a long time. There are different concern may apply to the fulfillment of any opinions: Some suggest that more than seven commandment, including procreation. days constitutes a long time, while others claim However, the Talmud presents inconsistent that thirty days is considered a long time applications of the principle that one must be (Talmudic Encyclopedia [Hebrew], Vol. 15, concerned about death. For example, a mishnah Heishinan le-mitah:1). It appears that a person (at Yoma 2a) states that the kohen gadol must should never delay the performance of any be married in order to perform the service in commandment for more than seven or thirty the temple on Yom Kippur. To that end, it days because of the fear that he might die cites the opinion of R. Judah, who says that prematurely. one must take into account the possibility that his present wife may die. Therefore, seven days One may legitimately argue that the before Yom Kippur, another woman should be commandment to procreate is essentially identified as a potential wife. But the sages different from yibbum/halitsah, and that the disagree with R. Judah, claiming there is no possibility of death need not be taken into 14. It would be inconceivable to suggest that the commandment to procreate has nothing to do with the raising and caring of the child.

Meorot 8 Tishrei 5771 Kahn 7 account. In the yibbum/halitsah case, the death offering to the Temple in Jerusalem is of one person would adversely affect another obligated to fulfill his vow within the year. If living person—i.e., the death of one brother he fails to do so, he violates this prohibition. would affect one of the sisters. Similarly, the The Talmud further asserts (BT Nedarim3b), kohen gadol would be affected by his wife’s based on a biblical verse (Num. 6:2), that lo death. However, the commandment to te’aher also applies to someone who vows to procreate has no effect on another person. If a become a nazir, but the Talmud is hard-pressed man dies before he fulfills this commandment, to find a situation in which the aspiring nazir his death does not affect anyone else. violates this prohibition. After all, once he says, Furthermore, his death exempts him from all “Behold, I am a nazir,” he becomes a nazir obligations, as the Talmud says, “Once a immediately and any failure to observe the person dies he is free from the commandments terms of nezirut constitutes a violation of the and absolved of all responsibilities” (BT nezirut itself, not of lo te’aher. The Talmud Shabbat 151b). Consequently, a delay in finally states that the violation occurs if he procreation should not be subject to the says, “I will not leave this world without consideration of possible death. having been a nazir [and having fulfilled all its requirements].” Since a person is unaware of In a similar vein, Netsiv (Mashiv davar 1:41) the day of his death, he must accept the nezirut addresses the issue of possible death and immediately, and if he procrastinates for a year makes this very distinction with regard to the he will violate lo te’aher (Rosh, Nedarim 3b). timing of the megilah reading on Purim. Netsiv rules that villagers who are permitted to read the megilah before the fourteenth day of Adar It appears that a couple may delay having can delay its reading until the fourteenth, children until a time when they will better be which is the preferred time. The chance of able to care for their children. their premature death and consequent failure to perform the commandment is not considered, because their death would not At first glance, this ruling appears to contradict affect others. Therefore, it is better that they Netsiv: It suggests that a person must consider wait for the preferred time rather than read at the prospect of an early demise and not delay the merely allowable one. fulfilling a statute even though it affects no one but himself.15 However, if this were true, one However, there is a talmudic ruling concerning might expect that a person who vows to accept a nazir that seems to contradict Netsiv’s nezirut within two years should also be obliged position on the consideration of an early to implement his nezirut immediately for fear of demise (Talmudic Encyclopedia [Hebrew], Vol. an early death. But Ran (Nedarim 3b) does not 15, Haishinan le-mitah, 6). The Talmud says (BT make this demand. He says that the Rosh ha-shanah 6b) that if a person takes a vow consideration of an early death depends upon and delays fulfilling it for approximately a year the formulation of the vow. If he vows, “I do (actually, the passage of three festivals), he not want to leave this world without having violates lo te’aher (the prohibition against observed nezirut,” the person is stipulating, as delaying fulfillment of a vow). For example, part of his vow, to fulfill this pledge during his someone who vows to donate a sacrificial lifetime, which is, of necessity, an unknown

15. His obligation to accept the nezirut immediately, explains Rosh, does not contradict the opinions of the Tosafot cited above, since the duration of time needed to fulfill nezirut is thirty days, which, according to Rosh, is considered a long time.

Meorot 8 Tishrei 5771 Kahn 8 quantity. Therefore, he must consider his death rabbinic authority creates a subsequent no matter how remote the possibility. If he aversion to that same authority. does not want to jeopardize his objective, he must begin his nezirut immediately, because a The rabbis are faced with an internal delay would constitute a violation of the actual contradiction in their position: If they grant vow. However, if he vows to accept nezirut any dispensation to a childless couple, they are within the next two years, he is not introducing relying on the “lenient” interpretation of the the prospect of death into his vow and his vow law—apparently, they conclude that a delay is will not be violated before the passage of the permitted. If so, they need not qualify their two-year period.16 Consequently, he need not decision or limit its validity to an arbitrary be concerned about the possibility of a period of time, whether three or six months.18 premature death, since failure to heed the vow On the other hand, if delay is forbidden, then affects only himself and no one else.17 no moratorium should be tolerated because no rabbi has the authority to permit that which is forbidden. He must find a halakhic basis for it. According to Rosh and Shulhan arukh, as Presumably, the rabbis who issue temporary understood by Maharikash, postponement is dispensations are functioning as not a violation of the law. pastoral/spiritual counselors who wish to encourage the couple to establish a faithful house in Israel. In that case, they should clarify Many rabbis, generally speaking, are opposed their role to the couple, and tell them directly to contraception, but would grant a reprieve to that they speak as spiritual advisors, rather than a childless couple for a limited amount of time, as halakhic decisors. generally three to six months. After that time the women are expected to stop using Many young couples are at this time struggling contraception or consult the rabbis once more to reconcile the contradictory objectives of for a dispensation. Yet, because the women are their education. They have been taught to again embarrassed or fearful, they either avoid develop their talents, pursue their education, the rabbi and suffer ensuing guilt or they and become self-sufficient financially and conceive a child whether they feel ready or not. emotionally. On the other hand, they are Paradoxically, their initial submission to taught humility and subordination to rabbinic

16. He would have to implement his vow within the first year because of lo te’aher. 17. Rav Herschel Schachter, in an article (“Halakhic Aspects of Family Planning”) in the Journal of Halakha and Contemporary Society (Fall 1982), posits that a delay in the commandment to procreate is forbidden. He bases this view on the following principles: 1. The Hazon Ish’s conclusion that a delay in fulfilling a positive non-time-bound commandment is viewed as a temporary cancellation of the commandment. 2. Zerizin maqdimin le-mitsvot, the conscientious carry out the Torah’s mandates expeditiously. 3. Haishinan le-mitah, we must consider the possibility of an unexpected early demise. 4. Maimonides’ position (Hilkhot Ishut 15:1) that a delay in the fulfillment of the commandment to procreate is viewed as a violation of the law itself. 5. Shulhan arukh’s conclusion (Even ha-ezer 76:6) that a postponement is forbidden. While I have deep respect for Rav Schachter, I must respectfully disagree with his reading of the Hazon Ish. I believe the conclusion of the Hazon Ish is unequivocal to permit a delay. As far as the principle of zerizin maqdimin le-mitsvot is concerned, I have attempted to show that it does not apply if a delay would enhance the fulfillment of the commandment. The principle of heishinan le-mitah also does not apply with respect to the commandment to procreate, based on the ruling of the Netsiv. It is true that Maimonides does not permit a delay. However, I have attempted to show, based on the Maharikash, that the Shulhan arukh does not follow Maimonides’ view and the citation from Even ha-ezer 76:6 is not necessarily positing that a delay is forbidden. I have elaborated on this last point in footnote 10. 18. I cannot find a legal source on which to base any specific amount of time during which a delay (for a childless couple) is permitted.

Meorot 8 Tishrei 5771 Kahn 9 authority. At best, the couple is confused about dabble in during one’s spare time. It is essential the extent of their autonomous decision- in sustaining a wholesome and enriching life. making. The conflict is at once philosophical, Indeed, a person who fails in this endeavor is theological, and psychological. lacking a crucial dimension of life. In this view, an absence of concern for one’s financial There is potential for grave harm in this future is an expression of personal folly and situation. Young people experience great not a testament to a higher faith. pressure to marry at an early age and are frequently overwhelmed by the combined Maimonides (Hilkhot De`ot 5:11) makes a pressures of marriage and parenting. Many similar point: mental health professionals I have consulted describe epidemic problems among young It is the way of sensible people to obtain a people who discover their identities and define job that will support them, then to buy their aspirations and values only after marriage. accommodation and then to get married, for They too frequently feel trapped by an earlier it is written, “Who has built a house and has decision, and often find their way to not yet dedicated it? Who has planted a psychotherapists and sometimes divorce vineyard and has not eaten of it? Who has courts. The problem is much more poignant betrothed a wife and has not yet taken her?” when there are children involved whom neither Stupid people start by getting married, then parent is prepared to care for. These tragic buying a house if they can afford one, and cases may contain a measure of harmful then, towards the ends of their lives, try to rabbinic enmeshment.19 find a job, or else support themselves by charity. It is written in the curses, ”You shall betroth a wife and another man shall lie with There is considerable compatibility between her; you shall build a house but shall not halakhic precedent and psychological thinking. dwell in it; you shall plant a vineyard but shall not gather its grapes.” This is to say that if one's actions are in the wrong order one will In fact, there is considerable compatibility not be successful. between halakhic precedent and psychological thinking. Young people who think that their In this light, even though Maimonides believes concern for financial autonomy reflects a a man should marry by the age of twenty, he doubt in divine providence might draw must first obtain a degree of financial security. comfort from the wisdom of the midrash If, however, he has not yet achieved this, then aggadah that compares a poor person to one he may (or perhaps should) delay marriage. who is dead (BT Nedarim 64b, cited by Rashi And since a fundamental objective of marriage on Exod. 4:19). On this point, the Gur Aryeh is procreation, it is quite reasonable to assume (on Exod. 4:19) explains that the desire for self- that just as financial security is an important sufficiency and autonomy is innate. It is not a prerequisite for marriage, so too should it be luxury for the select few or something to for starting a family. Therefore, since young

19. At times, the woman does not reveal to the rabbi the full dimension of her predicament. To illustrate how this could result in unintended harm I would like to present the following clinical example. A psychotherapist related to me the case of a childless nineteen-year-old married woman who suffered from an obsessive-compulsive disorder and severe depression. She consulted a rabbi for permission to practice birth control. The rabbi, apparently unaware of the severity of her disorder, made his decision solely on the basis of his concern for the health of the fetus: Since her medication might harm the fetus, she could use contraceptives as long as she required the medication. At that time, she was also being treated by a psychotherapist who recognized the larger personality issues of her illness: She was emotionally immature and terrified at the prospect of bearing and raising children. The therapeutic goal was to wean her from her medication and prepare her for the challenges of motherhood. Meanwhile, the patient knew that she could delay childbearing only as long as she took the medication and she consequently refused to alter her drug regimen. In light of the rabbi’s decision, she stymied the therapy and subverted its goals.

Meorot 8 Tishrei 5771 Kahn 10 couples today are marrying while pursuing an interfere. Likewise, a man who has been education and profession, delaying procreation married for ten years and remains childless is a valid and logical consideration. should not be pressured to divorce his wife.20 This, concludes Rama, should be the The need for rabbinic restraint in marital established policy in all matters of marital matters is supported by weighty halakhic relationships. Certainly then, according to precedent. Rivash was questioned (Responsa, Rama, this policy should be adhered to in 15) about the permissibility of performing a marital matters of behavior that the halakhah marriage between a man who had not yet itself does not prohibit! fulfilled the commandment to procreate and an elderly wealthy woman beyond the years of reproductive capacity. The young man sought The need for rabbinic restraint in marital financial security and the woman desired a matters is supported by weighty halakhic companion, but the community resolved to precedent. stop the marriage and consulted Rivash. His response provides the basis for future decisions. He replied that the community did We must apply the decisions of past technically have the right to compel the young generations to the contemporary scene. Young man and prevent the marriage. However, the people are marrying at a young age, frequently practice has been for many generations not to when they are still psychologically immature coerce marriage or object to one. In his pithy and emotionally insecure. Furthermore, they phrase, “the sages of past generations hid their must advance in a culture that requires a long eyes when it came to marital matters,” even if apprenticeship in graduate study or otherwise the couple’s actions were forbidden so long as before they are financially self sufficient. As the marriage itself was not illegitimate. He rabbis, we must maintain our role as facilitators further states that rabbinic coercion could lead of their growth, and allow them the latitude to to arguments and legal battles, and that the make decisions based upon needs that are rabbinic function with regard to marriage unique to each couple and that only they can should be limited exclusively to adjudicating know. We must accept the fact that we cannot disputes between husband and wife. know the deepest motives that impel young people to turn to us for permission to delay Based upon this ruling, Rama (Even ha-ezer 1:3) procreation. Nor are we qualified to discern limits the role of rabbinic courts in matters of the nuance of such blanket terms as “anxiety” marriage. Although the Shulhan arukh states and “marital jitters”; one person’s mild that the courts should coerce a man to marry at apprehension may be another’s insurmountable the age of twenty, Rama claims that we no emotional torment. Following Rama, it may be longer adhere to such a policy. Even if that we best serve our young people by someone who has not fulfilled the granting them the opportunity to decide when commandment to procreate wants to marry a they are ready for the noble task of woman who is incapable of having children, parenthood. Perhaps what is required is less the established practice has been not to their faith in us than our faith in them.

20. According to halakhah (BT Yevamot 64a), he would be required to divorce her.

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